Jury selection begins today in the retrial of a Hutchinson man charged in the molestation of a 6-year-old girl he was baby-sitting in December 2003.

Darcy Gray - The Hutchinson News - dgray@hutchnews.com

Monday

Aug 24, 2009 at 12:01 AMAug 24, 2009 at 6:00 PM

John Prine, 43, was convicted in 2004 of rape, aggravated criminal sodomy and aggravated indecent liberties, but in January the Kansas Supreme Court overturned the convictions and ordered a new trial in the case.

The same three alleged victims, who testified in Prine's first trial that he molested them when they were between the ages of 3 and 5, will take the stand again this week, Reno County District Attorney Keith Schroeder said.

Only the case involving the 6-year-old girl was charged because the statute of limitations had expired in the other two cases, in which two adult women said Prine molested them when they were girls but they never reported it.

The state's high court, in a published Jan. 16 decision, ruled that testimony from the two adult women should not have been allowed because of the wording of the law that allows evidence of prior bad acts.

The court ruled that in future cases it would apply a standard that the crime be "so strikingly similar in pattern or so distinct in method of operation as to be a 'signature.' "

"Without such a standard, one with identifiable meat on its bones, the line between mere propensity evidence and plan evidence is simply too thin for this court - or any court - to traverse predictably or reliably," the Supreme Court stated in its January opinion.

The justices did, however, suggest the Legislature take a look at revising the law. In February, Schroeder asked the Supreme Court to reconsider its decision ordering that Prine receive a new trial, but the court rejected his request.

In April, the Legislature did revisit the law and passed Senate Bill 44, which allows evidence of prior misconduct that is "relative and probative" to be used against a person accused of a sex offense.

So now, the same evidence that prompted the Supreme Court to throw out Prine's first trial will be used in his trial this week, Schroeder said.

"I will be calling the same witnesses and have filed a motion to introduce evidence on the other two victims," Schroeder said. "I wanted to renew it in light of the Supreme Court's decision."

On Monday, Reno County District Judge Richard Rome granted Schroeder's motion to admit the evidence of prior misconduct, despite arguments from Chief Public Defender Sarah McKinnon that the evidence was "prejudiced and not probative."

"It would shift the focus away from what's charged in this case," McKinnon said in court Monday.

She also said Prine does not "offer an innocence explanation to what happened Dec. 11, 2003, but has acknowledged he could have accidentally touched the girl while the two were roughhousing the month prior."

Schroeder countered the state does not have to put specific dates as to when the crime happened and can allege the crimes occurred "on or about" Dec. 11, 2003.

Rome will preside over the trial this week, even though McKinnon filed a motion Aug. 7 asking for him to recuse himself from the case.

When Prine was sentenced to 32 years in prison in 2004 for the convictions, it included four additional years behind bars for repeatedly yelling obscenities at Rome. After repeated warnings, Rome sentenced him to six months in jail for each time he shouted profane language, and sheriff's deputies had to physically gag Prine from speaking further.

Reno County Administrative Judge Patricia Macke Dick recently ruled Rome would still preside over the case, since he was "just doing his job" when he found Prine in contempt. Macke Dick said she did not believe Rome held any personal prejudice or bias against Prine.

Macke Dick indicated that if Prine were to be given a new judge, it would send a message that those who misbehave in court could follow the same path and ask for new judges in their cases.

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